Sievert v. Duzinski
| Docket Number | Appeal No. 3-19-0179 |
| Decision Date | 18 November 2021 |
| Citation | 2021 IL App (3d) 190179,196 N.E.3d 492,458 Ill.Dec. 188 |
| Parties | Talia SIEVERT, Plaintiff-Appellee, v. Kevin DUZINSKI, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael Resis and Ellen L. Green, of SmithAmundsen LLC, and Mary Jo Bonamino, of Law Office of Steven A. Lihosit, both of Chicago, for appellant.
Kyler Juckins and Aaron B. Morrow, of Block, Klukas, Manzella & Shell, P.C., of Joliet, for appellee.
¶ 1 Plaintiff, Talia Sievert, filed suit against defendant, Kevin Duzinski, for damages arising from a motor vehicle accident. The Will County circuit court denied defendant's motion to dismiss under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The court certified the following question for review pursuant to Illinois Supreme Court Rule 308(a) (eff. July 1, 2017):
"Whether, in a case in which the plaintiff's lawsuit was dismissed with [sic ] want of prosecution after expiration of the statute of limitations and the plaintiff did not attempt service before the dismissal for want of prosecution, a trial court may consider the overall lapse of time in obtaining service of process when the dismissal for want of prosecution is vacated and service obtained on the first attempt at the address known to the plaintiff from the inception of the suit."
We granted defendant's application for leave to appeal. We answer the certified question negatively and remand the cause for further proceedings.
¶ 3 On March 13, 2017, plaintiff filed a complaint seeking to recover damages for injuries she sustained on March 15, 2015, when the car in which she was a passenger collided with defendant's vehicle. Plaintiff did not have summons issued. On August 17, 2017, the circuit court dismissed the complaint for want of prosecution after plaintiff failed to appear for a status hearing.
¶ 4 On May 14, 2018, plaintiff's counsel sent a letter to the circuit court indicating counsel's intention to move to vacate the dismissal. The letter, which the court received on May 28, 2018, stated that counsel made an "egregious mistake regarding the proper future date" and that he received notice of the dismissal "at a much later date than normal." Counsel indicated that he would file a petition to vacate the dismissal and reinstate the case when he returned to his office. Counsel never filed the motion or presented it to the court.
¶ 5 On July 16, 2018, plaintiff retained new counsel who filed a motion for leave to file a substitute appearance of counsel along with a motion to vacate the dismissal and to issue alias summons. The motion to vacate the dismissal order noted that prior counsel failed to appear at two status hearings before the case was dismissed and that he had "made no affirmative act on behalf of [p]laintiff" since May 23, 2018. The motion also stated that it was "unclear from the docket if an initial [s]ummons was ever issued for [d]efendant." New counsel requested that the court vacate the dismissal order and reinstate the case.
¶ 6 On July 20, 2018, the trial court allowed new counsel leave to file substitute appearance. The court also vacated the dismissal, reinstated the case, and ordered alias summons to issue. Subsequently, summons issued and plaintiff served defendant on August 21, 2018.
¶ 7 On August 31, 2018, defendant appeared and filed a motion to dismiss pursuant to Rule 103(b). Defendant asserted that plaintiff's complaint should be dismissed for failing to exercise due diligence in issuing summons and serving defendant with the complaint. The motion alleged that the 17-month period between the filing of the lawsuit and the actual attempt to serve defendant with the complaint demonstrated that plaintiff failed to exercise due diligence in pursuing the lawsuit. The motion also attached a May 3, 2017, letter from defendant's insurance carrier indicating that plaintiff may file a lawsuit against defendant. Defendant conceded that his actual knowledge of the lawsuit should be considered in determining plaintiff's due diligence. However, he argued that plaintiff waited more than a year after defendant received the letter to issue summons, and thus, defendant had no reason to believe that plaintiff intended to pursue a lawsuit against him. In response, plaintiff argued that the court should not consider the lapse of time during which the complaint was dismissed for want of prosecution in determining whether she exercised due diligence.
¶ 8 Following a hearing, the trial court denied defendant's motion. In reaching its conclusion, the court commented:
"Doesn't seem fair that the [dismissed for want of prosecution] time should be counted because nothing can happen during that time frame either, so I'm going to deny the motion to dismiss."
¶ 9 Based on defendant's motion, the trial court certified the following question for interlocutory review pursuant to Rule 308(a) :
"Whether, in a case in which the plaintiff's lawsuit was dismissed with [sic] want of prosecution after expiration of the statute of limitations and the plaintiff did not attempt service before the dismissal for want of prosecution, a trial court may consider the overall lapse of time in obtaining service of process when the dismissal for want of prosecution is vacated and service obtained on the first attempt at the address known to the plaintiff from the inception of the suit."
This court allowed defendant's application for leave to appeal.
¶ 11 The certified question asks this court to determine whether—for purposes of a Rule 103(b) motion to dismiss—the trial court may consider the overall lapse of time in obtaining service of process when the case was dismissed for want of prosecution. Stated differently, we are asked to determine whether the trial court may consider the period during which the cause remained dismissed for want of prosecution in determining whether plaintiff exercised due diligence in serving defendant. We review certified questions de novo. Simmons v. Homatas , 236 Ill. 2d 459, 466, 338 Ill.Dec. 883, 925 N.E.2d 1089 (2010). On review, we answer the question negatively.
¶ 12 Rule 103(b) provides, in relevant part:
Ill. S. Ct. R. 103(b) (eff. July 1, 2007).
¶ 13 The purpose of Rule 103(b) is to protect defendants from unnecessary delays in service of process and to prevent plaintiffs from circumventing the applicable statute of limitations. Silverberg v. Haji , 2015 IL App (1st) 141321, ¶ 30, 393 Ill.Dec. 213, 33 N.E.3d 957 (citing Segal v. Sacco , 136 Ill. 2d 282, 286, 144 Ill.Dec. 360, 555 N.E.2d 719 (1990) ). Trial courts are given wide latitude to dismiss a case under Rule 103(b) when service is not effected in a timely manner. See Brezinski v. Vohra , 258 Ill. App. 3d 702, 704, 197 Ill.Dec. 342, 631 N.E.2d 345 (1994). However, public policy in Illinois favors determining controversies according to the substantive rights of the parties. Christian v. Lincoln Automotive Co. , 403 Ill. App. 3d 1038, 1042, 343 Ill.Dec. 462, 934 N.E.2d 1065 (2010). Thus, a dismissal with prejudice under Rule 103(b) is considered a harsh penalty that is necessary when delay in service denies the defendant the opportunity to investigate the circumstances surrounding the case while the relevant facts are still available. Segal , 136 Ill. 2d at 288, 144 Ill.Dec. 360, 555 N.E.2d 719 ; see also Verploegh v. Gagliano , 396 Ill. App. 3d 1041, 1045, 337 Ill.Dec. 305, 922 N.E.2d 428 (2009).
¶ 14 Rule 103(b) does not define a specific time in which a defendant must be served; rather, it requires a plaintiff to exercise "reasonable diligence." Kole v. Brubaker , 325 Ill. App. 3d 944, 948-49, 259 Ill.Dec. 649, 759 N.E.2d 129 (2001). In ruling on a motion challenging the plaintiff's diligence in obtaining service, the trial court "may consider the overall lapse of time between the filing of the first complaint and the ultimate service of summons in the second case." Muskat v. Sternberg , 122 Ill. 2d 41, 45, 118 Ill.Dec. 455, 521 N.E.2d 932 (1988) (citing Aranda v. Hobart Manufacturing Corp. , 66 Ill. 2d 616, 6 Ill.Dec. 849, 363 N.E.2d 796 (1977) ). The overall lapse of time that may be considered refers to "the sum total of days before a dismissal and after a refiling, but not the time that passes in between, when no action is pending." Case v. Galesburg Cottage Hospital , 227 Ill. 2d 207, 219, 316 Ill.Dec. 693, 880 N.E.2d 171 (2007). This method of calculating reasonable diligence under Rule 103(b) applies to both voluntary and involuntary dismissals. See id. at 218-19, 316 Ill.Dec. 693, 880 N.E.2d 171 (); Aranda , 66 Ill. 2d at 620, 6 Ill.Dec. 849, 363 N.E.2d 796 ().
¶ 15 Here, plaintiff should not be penalized for neglecting to serve a nonexistent complaint on defendant when there was no pending case. The overall lapse of time may be considered in determining whether plaintiff was reasonably diligent in obtaining service, i.e. , the period before the dismissal and after refiling. However, the time that...
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